Yesterday, the Niskanen Center submitted comments to the United States Trade Representative (USTR) in a request for information intended to identify “notorious markets” on the Internet. Every year, the USTR compiles a list that “identifies online and physical marketplaces that reportedly engage in and facilitate substantial copyright piracy and trademark counterfeiting.” Website platforms that engage in online piracy are undoubtedly an issue for copyright holders—one that should be addressed. However, a number of commentators argue that content delivery networks (CDN) should play a larger role in policing online content. The Niskanen Center disagrees.
Under 17 U.S. Code § 512 of the Digital Millennium Copyright Act (DMCA), a “notice-and-takedown” order to “remove, or disable access to, the material that is claimed to be infringing,” requires that the copyrighted material in question resides on a system or network that is “controlled by or operated by or for” a website operator. CDNs do not possess these technical capabilities. As a result, we argue that intermediary liability protections afforded to other organizations operating on the “backbone” of the Internet, ought to apply equally to CDNs. We emphasize that CDNs are not web hosting services, and therefore cannot perform takedown operations.
As we argue in the comments: “Whatever benefits some actors participating in notorious markets may reap from CDN services, the mere possibility of a technological tool being used for ill is not justification enough for it to be held liable for the actions of users.”
From the Executive Summary:
The Niskanen Center wishes to draw the U.S. Trade Representative’s (USTR) attention to a number of spurious and erroneous claims forwarded by other commentators on the 2016 Special 301 Out-of-Cycle Review of Notorious Markets. We argue that the reference to content delivery networks (CDN) serves to misdirect attention away from web hosting services and, more importantly, individual infringers of copyright law. CDNs are not, despite suggestive claims to the contrary, web hosting providers and many possess no means of taking direct action through the “notice and takedown” provision in 17 U.S. Code § 512.
We take no position on the particular websites and foreign markets listed in the submitted comments. It may very well be the case that many, most, or all of those sites offered by other commenters are indeed guilty of copyright infringement. Our intention is simply to point out the mistaken assertion that CDNs, and the services they offer consumers, are to blame. To that end, we offer a technical illumination of the facts surrounding the operations of CDNs, and refer the USTR to the numerous benefits—from the proliferation of trust online to effective cybersecurity responses—that CDNs offer the online ecosystem.
You can read the comments in their entirety here.